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Pollack v. Regional School Unit 75

United States District Court, D. Maine

January 27, 2016

MATTHEW POLLACK and JANE QUIRION, individually and as next friends of B.P., Plaintiffs,
REGIONAL SCHOOL UNIT 75, et al., Defendants.



This matter comes before the Court on the Plaintiffs’ motion for partial summary judgment (ECF No. 158), and the Defendants’ motion for summary judgment. ECF No. 160. For the reasons stated below, the Plaintiffs’ motion is DENIED and the Defendants’ motion is GRANTED IN PART and DENIED IN PART.


The Plaintiffs in this case are Matthew Pollack and Jane Quirion (the “Parents”), individually and as next friends of their son B.P., a sixteen-year-old boy who is diagnosed with autism and a language disorder that is a variant of Landau-Kleffner Syndrome. Unified Statement of Facts Submissions for Defs.’ Mot. for Summ. J. with Citations to Joint Summ. J. R. ¶ 3 (“SF”) (ECF No. 213).[1] B.P. is nonverbal and has very limited expressive communication skills. SF ¶ 3. He is a student at Mt. Ararat Middle School. SF ¶¶ 21, 83. The Defendants are Regional School Unit 75 (“RSU 75” or the “District”), which has been B.P.’s school district since kindergarten, and District employees Bradley Smith, Patrick Moore, Tanji Johnston, and Kelly Allen (together, the “Defendants”). SF ¶ 5.

The parties cross-move for summary judgment on the Plaintiffs’ claims that the District violated the Americans with Disabilities Act (the “ADA”), Section 504 of the Rehabilitation Act (“Section 504”), and the First Amendment of the United States Constitution by refusing to allow B.P. to wear an audio recording device throughout his school day. The Defendants additionally move for summary judgment on the Plaintiffs’ claims that the District and Allen violated the Fourth Amendment of the United States Constitution by conducting a “search” of B.P.’s person on the first day of the 2012-2013 school year and that all Defendants violated the ADA, Section 504, and the First Amendment by engaging in a variety of retaliatory acts.


Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). On cross-motions for summary judgment, courts “view each motion separately and draw all reasonable inferences in favor of the respective non- moving party.” Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013). Faced with cross-motions, courts must “decide ‘whether either of the parties deserves judgment as a matter of law on the facts that are not disputed.’ ” Fid. Co-op Bank v. Nova Cas. Co., 726 F.3d 31, 36 (1st Cir. 2013) (quoting Barnes v. Fleet Nat’l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)).


I. Recording Device Claims

A. B.P.’s Right to Wear a Recording Device

The Plaintiffs claim that B.P. has the right to wear an audio recording device throughout his school day under the ADA, Section 504, and the First Amendment. Second Am. Compl. ¶¶ 185-98 (Count IV), 206-18 (Count VI) (ECF No. 51).

As explained in a previous order, the IDEA has both a savings clause and an exhaustion clause. See Order on Defs.’ Mot. to Dismiss 12 (ECF No. 33). It instructs as follows:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(l). In other words, the IDEA does not displace other federal laws that protect disabled children, but it does require that plaintiffs seeking relief available under the IDEA first use its administrative processes to resolve their disputes. This requirement gives education professionals with specialized knowledge and those who interact with the child on a daily basis the opportunity to find a solution, and if that fails, to create a record of their process, which will aid any later-reviewing court. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 60-61 (1st Cir. 2002).

Here, B.P. bypassed the IDEA process for his request to wear a recording device and therefore did not administratively exhaust.[2] Specifically, in March of 2012 Quirion sent a letter to Patrick Moore (the District’s Director of Special Services) and Bill Zima (the Principal of Mt. Ararat Middle School) requesting a change of B.P.’s classroom teacher and explaining that she “will have a voice recording device on [B.P.] whenever he is in school” for his safety.[3] Joint Summ. J. R. 6287 (“SJR”) (ECF No. 199). The District responded, in part by suggesting an IEP meeting to discuss the matter. SJR 6367-69.[4] The Parents declined the District’s offer of an IEP meeting. SJR 6347.[5]

Quirion renewed the recording device request in June of 2012, this time as a reasonable accommodation for B.P. under the ADA. SJR 6406. Moore responded that he and Zima would “look into the ADA request and schedule a time to meet with you and discuss the matter.” SJR 6408. Quirion responded that she would be willing to meet, but wanted to know the agenda ahead of time. SJR 6409. She also informed Moore that “[i]f the point of a meeting is to ask me to withdraw my request, I will not withdraw it.” SJR 6409. The record does not indicate that any meeting took place after Quirion’s June 2012 request.

On August 30, 2012, days before the start of the new school year, Quirion again wrote to Moore and Zima regarding the recording device matter. SJR 6413-14. She informed these school administrators that she interpreted their silence on her earlier request as approval, and would “be sending [B.P.] to school on Tuesday (and every day) with a recording device.” SJR 6414. Moore wrote back apologizing for the delay and indicating as follows:

I will be calling you today with a specific request not to send [B.P.] to school with a recording device on Tuesday. I would like the IEP team to review this accommodation request and have an IEP determination prior to any action on your part. If the IEP team decides that the accommodation is necessary and reasonable, request approved. If not, you have the opportunity for all your due process safeguards.

SJR 6413. Quirion declined the offer of an IEP meeting. SJR 6415. To Quirion, the request for the recording device as an ADA accommodation was different from an educational accommodation under the IDEA. SJR 6415. Moore sent Quirion a letter on September 1, 2012, reiterating the District’s objections to the recording device and proposing some alternative ways to address her concerns. SJR 6418.

The request that B.P. wear a recording device at school is relief that would be available under the IDEA. See 20 U.S.C. §§ 1401(33), 1414(d)(1)(A)(i)(IV);[6]see also 20 U.S.C. § 1415(l) (explaining the IDEA’s exhaustion requirement). Had the Parents accepted the District’s invitation to hold an IEP meeting on the recording device issue, a group of qualified education professionals could have sat down with Pollack and Quirion to discuss the best way to address B.P.’s needs. In March of 2012, when the Parents first raised the recording device issue to address safety, the IEP team could have met and worked collaboratively to determine whether B.P.’s IEP should include his use ...

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